A second generation of vibration white finger (VWF) claims suffered a blow last month when Appeal judges held that smaller scale employers had a later date of knowledge of the condition than had previously been attributed to the likes of British Coal in the ‘heavy industry’ claims.
The case, Doherty v Rugby Joinery and Others, concerned eight women who, between 1970 and 1999, were employed by the Rugby Joinery which ran two factories in Doncaster for the manufacture of doors and windows. The Appeal judges found that the business was not liable for a number of VWF claims because they were not expected to be aware of, and react to, this condition until 1991/92.
“This finding has major positive implications for defendants and insurers,” said Helen Lawson, partner in the defence litigation department at Ricksons. “Prior to our success on this issue, defendants were generally expected by the Court to have recognised and reacted to cases of VWF by 1976, ‘the date of knowledge’.” According to the lawyer, the ruling would affect the next tranche of claims from those workers who were employed in jobs that are not normally associated with VWF.
The judge at first instance had held that the defendants were not liable because they were in the woodworking industry. Lawson pointed out that the Court of Appeal was “keen to emphasise that the ratio of their decision could apply to any employer who did not have an obvious reason to be aware of VWF”. “The Court held that there had to be a ‘trigger’ for action,” she added. The 1976 ‘date of knowledge’ was based on the experience and problems of national employers engaged in activities well known to be associated with VWF. The Court of Appeal has now made it clear that a much later date of knowledge would apply to medium size and small employers who had no actual awareness of the condition.
“It is very important as most of the claims now coming through are for these smaller industries and most of the heavy industry claims have been settled,” said Lawson, who has in the region 200 VWF files. “But we are still somewhat in the dark because the case hasn’t been tested by any other case as yet- that will be the crunch time.”